TaxTMI 
TaxTMI 
2018 (9) TMI 252
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....nternational Vs Collector of Central Excise, Pune [1996 SCC (4) 199] held as follows: "8. On hearing counsel, we are of the view that the dissenting order passed by Sri G.A. Brahma Deva, Member (Judicial) is legal and proper. It is evident from Rule 31-A of the CEGAT (Procedure) Rules, 1982 that the same Bench which passed the final order, should hear the application for rectification of mistakes. Due to subsequent events, a situation may emerge when one or more of the Members who pronounced the order may cease to hold the office as a Member of the Tribunal --by retirement, death or otherwise. Though, ordinarily, the rectification application should be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, the subsequent events or the change in situation or altered circumstances, may render it impossible. In such a situation, it is certainly open to the President to direct that the application may be heard by a Bench consisting of a Member/ Members who did not originally hear the appeal and passed the order. In other words, the Members, who constitute the Tribunal for hearing the rectification proceedings, may be different. To this extent, ....
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....t clear that no applicant can claim or insist for early hearing or priority hearing of such an application. Taking into account the overall pendency of such applications, the availability of Members to dispose of such applications and the feasibility and practicability to constitute appropriate Bench, it is for the President (subject to the observations contained in this judgment) to constitute an appropriate Bench for hearing of the application. All that we want to state is that the applicant cannot insist for an early hearing or for giving a priority in the matter. It is for the President, to pass appropriate orders in his discretion, by evaluation of the volume of work, pendency of the number of applications, availability of Members and the practicability of constitution of Benches." 2.2 Since both the Members who have originally decided the Appeals have been transferred out of Mumbai, and it would not have been administratively and economically feasible and viable to place these ROM applications before the bench comprising of the same two members, this, matter has been listed before this bench and taken up for disposal. 3.1 Shri V Sridharan learned Senior Advocate arguing fo....
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....assing an order is a mistake apparent from the record. 3.6 Since in the present case facts and submissions made by the Appellant during the course of hearing and in appeal filed have not been taken into consideration by the bench, while passing the order, there is an error apparent on record justifying these ROM applications. 4.1 Arguing for the revenue against the ROM applications, Ms P Vinitha Sekhar Joint Commissioner, Authorized Representative submitted that all the pleas raised by the Appellant in the Appeal Memo and during the course of hearing have been duly considered by the bench and taken into account while passing the said order. 4.2 In the view of learned Authorized Representative the findings arrived by the bench on the pleas raised in the appeal or during the course of hearing cannot be challenged by way of an rectification application before the Tribunal itself. If Appellant are aggrieved by the findings arrived, then it would be proper for them to file an appeal before the appropriate forum. 4.3 She relied on the decisions in case of 0m Prakash Bhatia Vs Commissioner [2001 (131) ELT 305 (T-LB)], Dinkar Khindria Vs Collector [2000 (118) ELT 77 (T-LB)], Commission....
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....one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record." 7. It is not the case of the Applicant that the pleas raised by them in appeal or argument have not been considered by the bench while disposing of the appeal, but they have filed this rectification application on the ground that tribunal has failed to consider and give a specific finding. In their appeal and during the course of arguments Appellants have raised the issue of limitation and has after considering the submissions have given a finding of fact that extended period of limitation has been rightly invoked. Now this finding of fact is sought to be rectified by this application for rectification of mistake. The error apparent on record is pointed to be certain decisions that have been quoted by the Appellant during course of argument have not been considered by the bench as they do not find mention in the findings of the bench. It is settled principle in law that whether extended period of limitation can be invoked or not is dependent on the facts of case and cannot be dependent on the case law cited. In recent decision reported in 2018-TIOL-1627-HC-DEL-IT, Hon....
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....ification of Mistake. In view of the decision of larger bench in case of Dinkar Khindria Vs Collector [2000 (118) ELT 77 (T-LB)] holding that- "5. The power of rectification of mistake under Section 129(B) of the Act is a limited power and this power is restricted to rectification of the mistakes apparent from the record calling for amendment of the order. "Rectification" means "taking out mistakes from". A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points, on which there may conceivably be two opinions (refer Supreme Court's decision in the case of S. Bahrain, Income Tax Officer Company Circle IV, Bombay v. Volkart Brothers and Ors. - AIR 1971 (SC) 2204 (SC). A decision on a debatable point of law or facts is not a mistake apparent from the record and the debatable issue could not be the subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment. Rectification of mistake is by no means an appeal in disguise whereby an order even if it is not valid, is re-heard and re-decided. Rectification of m....
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....ial question of law arose" appears to us to be clearly well founded, Indeed, Id. Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error. Thus, Section 129B(2) of the Act does not envisage the rectification of an alleged error of judgment." 9. In case of Quality Exports & Chemicals [2000 (122) ELT 361 All], Hon'ble Allahabad High Court has held as follows:- "6. So far as the rejection of the rectifications of mistake applications is concerned, I do not find any error in the order passed by the Tribunal. Section 35C(2) provides that the appellate Tribunal may, at any time within 4 years from the date of the order with a view to rectify any mistake apparent from the record, amend any order passed by it under Subsection (1) and shall make such amendment if the mistake is brought to its notice by the Commissioner, Central Excise or the party to the appeal. In view of this provision only the mistake from the record can be rectified. The mistake that requires meticulous examination of the record and reappraisal of the material and fresh findings on such reappraisal do not amount to mistake apparent on the record. T....
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....sold the very same goods at much higher price to another company. The CESTAT had earlier come to a conclusion that it was nothing but an attempt to evade duty and subsequently, in pursuance of the rectification application, the CESTAT took altogether a different view whereby it came to the conclusion that the company with which the respondent-assessee had dealings, was in no way inter-connected. Thus, the facts which had been ascertained at an earlier point of time were found to be incorrect or the CESTAT had re-appreciated evidence while deciding the rectifying application. 12. According to the learned counsel, the CESTAT should not have re-appreciated the evidence so as to come to a different conclusion while exercising its power under Section 35C(2) of the Act. 13. The learned counsel relied upon judgments of this Court in Commissioner of Central Excise, Calcutta v. Ascu Ltd., Calcutta 2003(9) SCC 230, Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd. 2003(12) SCC 731, Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. 2008(221) E.L.T 16 and Mepco Industries Limited, Madurai v. Commissioner of Income Tax and Another 2010(1) SCC 434. 14. On the oth....